1 Resources

Family & Medical Leave Act (FMLA)

Overview of FMLA and relationship to workers compensation.

The Family and Medical Leave Act (FMLA) became effective on August 5, 1993, for most employers. It was enacted with recognition for the lack of employment policies to accommodate working parents in their choice between job security and parenting and the inadequate job security that existed for employees with serious health problems. The purpose of the law was designed to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition.

Under the FMLA, employers with more than 50 workers are required to provide up to 12 weeks of unpaid, job-protected leave to "eligible" employees for certain family and medical reasons. Employees are "eligible" if they have worked for a covered employer for at least one year and for at least 1,250 hours during the previous twelve months. The law specifies acceptable reasons for taking leave, provides for intermittent or reduced leave, and calls for job and benefits protection and continued medical insurance coverage. Employers must reinstate the worker at the end of the leave, and may not discipline or fire employees taking FMLA leave.

The law is enforced primarily by the United States Department of Labor's Employment Standards Administration, Wage and Hour Division, for all private, state and local government employees, and some federal employees. Special rules apply to employees of local educational agencies and separate provisions are applicable to civil service employees.

Employee Coverage
FMLA applies to all:

    • public agencies, including state,, local and federal employers, and local education agencies (schools); and
    • Private sector employers who employ 50 or more employees for at least 20 work-weeks in the current or preceding calendar year, including joint employers and successors of covered employers.

Employee eligibility To be eligible for FMLA benefits, an employee must work for a covered employer and:

    1. have worked for that employer for at least 12 months;
    2. have worked at least 1,250 hours during the 12 months prior to the start of the FMLA leave; and
    3. work at a location in the United States or in any territory or possession of the United States where at least 50 employees are employed at the location or within 75 miles of the location.

Leave Entitlement
A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave in a 12 month period for one or more of the following reasons:

    • for the birth of a son or daughter, and to care for the newborn child;
    • for the placement with the employee of a child for adoption or foster care, and to care for the newly placed child;
    • to care for an immediate family member (spouse, child, or parent - but not a parent "in- law) with a serious health condition. When the employee is unable to work because of a serious health condition.

For purposes of the law, a "serious health condition" means an illness, injury, impairment or physical or mental condition that involves:
    • any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility;
    • a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider;
    • any period of incapacity due to pregnancy, or for prenatal care;
    • any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.);
    • a period of incapacity that is permanent or long - term due to a condition for which treatment may not be effective (e.g., Alzheimers, stroke, terminal diseases, etc.); or
    • any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).

Job Restoration
Upon return from FMLA leave, an employee must be restored to the employee's position of employment when the leave commenced, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. In addition, an employee's use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave, nor be counted against the employee under a "no fault' attendance policy.

Under specified and limited circumstances where restoration to employment will cause substantial and grievous economic injury to its operations, an employer may refuse to reinstate certain highly-paid "key" employees after using FMLA leave during which health coverage was maintained.

Unlawful Acts
FMLA makes it unlawful for any employer to interfere with, restrain, or deny the exercise of any right provided by this law. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any proceeding, related to FMLA.

Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions; nor can FMLA leave be counted under "no fault' attendance policies.

FMLA Application to Workers Compensation
Neither the FMLA law nor promulgated regulations contain substantive information relative to the interaction between FMLA and workers compensation. In presenting a series of Questions and Answers regarding FMLA, the Department of Labor notes that "FMLA leave and workers compensation leave can run together, provided the reason for the absence is due to a qualifying serious illness or injury and the employer properly notifies the employee in writing that the leave will be counted as FMLA leave."

Additional information regarding the program may be found at the Department of Labor website at http://www.dol.gov/whd/fmla/fmlaAmended.htm

Concluding observation's
Since most workers compensation leaves will typically be covered under the FMLA, employers should be prepared to comply with both laws. Failure to categorize a WC leave as a FMLA leave generally will not harm the employee as long as he gets all of the benefits of FMLA leave, such as continued health insurance and reinstatement rights. However, the employer may lose the opportunity to count the time on WC leave against the employee's FMLA entitlement and may extend unnecessarily the employee's FMLA leave eligibility. In addition, employers may violate the FMLA if they do not reinstate an employee from a WC leave that was not properly designated as FMLA leave.

Source: Excerpts from WCIO News & Views, February 25, 2003

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